We Need Judges Who Can Stand Erect Against Political Winds Of The Times : Justice Ujjal Bhuyan

Supreme Court Judge Justice Ujjal Bhuyan on Saturday said that judges who can stand erect against the political winds of the times are needed to ensure an independent judiciary.

Justice Bhuyan cautioned the judiciary against being seen as bending over backwards to justify denial of personal liberty and violation of human rights, stressing that any distortion of the Constitution amounts to a violation of constitutional morality.

Speaking at a public event, Justice Bhuyan underlined that courts must remain vigilant to ensure that constitutional values are not diluted .

“Judges should not be seen or perceived as bending over backwards to justify denial of liberty and violation of human rights. If the Constitution is distorted then 'constitutional morality' is violated,” he said.

Emphasising the centrality of judicial independence to a constitutional democracy, Justice Bhuyan referred to Caroline Kennedy's observation that an independent judiciary is indispensable to protect democracy and the rule of law. For this, he said, the system requires judges “who can stand erect against the political winds of the times”.

"As was said by Caroline Kennedy, an independent judiciary is indispensable to protect our democracy and the rule of law. For that, we need Judges who can stand erect against the political winds of the times," Justice Bhuyan said.

Recalling the inaugural address of the first Chief Justice of India, Justice Harilal Jekisundas Kania, Justice Bhuyan said the Supreme Court was envisaged as an institution that would remain firm and aloof from party politics. “It is unconcerned with changes in the Government. It has good will and sympathy for all, but allied to none,” he noted, reiterating the foundational expectation of judicial neutrality.

Justice Bhuyan also reflected on the enduring strength of the Indian Constitution, observing that it has stood the test of time by bringing those on the margins into the mainstream, conferring dignity and giving voice to the voiceless. “It has shown us the way forward. We must remain ever vigilant to protect our Constitution,” he said.

Criticism that unelected judges cannot interfere with laws passed by the legislature has no basis

In his address, Justice Bhuyan stated that the labelling of the tool of Judicial Review as an interference by "unelected judges" in the work of elected representatives holds "no legal or constitutional basis."

Delivering a lecture on the topic "Constitutional Morality and Democratic Governance" at the ILS Law College, Pune, Justice Bhuyan said that the power of the Supreme Court to examine the validity of laws passed by Parliament flows directly from the Constitution itself and is an essential part of democratic governance.

"The criticism that unelected Judges of constitutional courts should not interfere in the law making by elected representatives of the people has no legal or constitutional basis," Justice Bhuyan stated, adding that "the Constitution has mandated the Supreme Court the power to examine whether law made by the Parliament conforms to the constitutional requirements or not, and if not, to strike down such law by exercising the power of judicial review."

His remarks referenced the strong criticism from the lawmakers, who, following the NJAC verdict, had termed it a "tyranny of unelected" judges who had set aside the "will of the people" expressed through a constitutional amendment and an Act of Parliament. Justice Bhuyan countered this view by grounding the Court's authority firmly in the Constitution's design, emphasizing that the "Supreme Court had exercised the power of judicial review which the Constitution has conferred upon it."

Justice Bhuyan recounted how the founding fathers chose "constitutional supremacy over parliamentary sovereignty" to establish essential governing principles and prevent unchecked power. He described "constitutional morality" as the soul of democratic governance, ensuring institutions adhere to constitutional values rather than acting on "the strength of numbers, authority and power."

“Constitutional morality means that the nation is governed by the rule of law and not by the rule of the people. An independent judiciary is not only a necessity to ensure that rule of law prevails but is central to democratic governance.”, he said.

Referencing Indian Young Lawyers Association vs. State of Kerala, (2019) 11 SCC 1 popularly known as 'Sabrimala Temple Case' where the Court permitted entry of women of all age groups to the Sabarimala temple, holding that 'devotion cannot be subjected to gender discrimination', Justice Bhuyan outlined the true characteristics of the term 'constitutional morality', stating that “when there is a violation of the fundamental rights, the term 'morality' naturally implies 'constitutional morality' and any view that is ultimately taken by the constitutional courts must be in conformity with the principles and basic tenets of the concept of this 'constitutional morality' that gets support from the Constitution”, uninsulated by popular voices.

The judge highlighted the evolution of the "basic structure doctrine" established in the landmark Kesavananda Bharati case, which empowers the Court to invalidate constitutional amendments that destroy the Constitution's core identity. Through this doctrine and others, he noted, principles like democracy, secularism, rule of law, and crucially, judicial independence and judicial review, are now "firmly entrenched" as essential features of the Constitution.

In his concluding remarks, Justice Bhuyan invoked the words of Dr Rajendra Prasad from the concluding session of the Constituent Assembly, highlighting that the success of democratic institutions depends on the willingness of those who run them to respect differing viewpoints and to show capacity for compromise and accommodation.

Also from the address - Transferring Judge At Centre's Request Compromises Integrity Of Collegium System : Justice Ujjal Bhuyan